A notification issued by the government a month ago excludes the “top secret section” of the Vigilance from the purview of the Act. All confidential verifications and vigilance enquiries /quick verifications of sensitive nature are done by this section of the VACB.

Those who can hide behind the notification include the Chief Minister, former Chief Ministers, Ministers, former Ministers, members of the Assembly and Parliament and all India service officers. Works related to all surprise checks inclusive that of all India service officers, Chief Minister, former chief ministers, ministers, former ministers, MLAs, MPs are also exempted. All correspondence made by VACB with Lok Ayukta, Lok Pal, CBI and CVC in connection with any enquiry and investigation as well as all petitions which are already under enquiry/investigation by Lok Ayukta,, Lok Pal, CBI and CVC are covered under the notification.

Interestingly, the notification is issued by a government headed by a Chief Minister who has set up Web cameras in his chamber and office claiming that they would enhance transparency. (That it is a farce is another matter). Moreover, the notification is issued misinterpreting a provision of the RTI Act. Section 24(4) of the Act provides for exclusion of intelligence and security organisations from the purview of the Act. The Government has used this provision to include the ‘T’ branch of the VACB in the schedule of organisations excluded from supplying information under the Act.

But the rider is that the provision applies only to “intelligence and security organisations” notified by the government, and a vigilance bureau is neither. Even if it is accepted for argument’s sake that the VACB is intelligence or security organisation, Section 24(4) specifies that information pertaining to the allegations of corruption and human rights violations shall not be excluded. So, the notification by the government is totally in violation of the Act.

It is just aimed to help corrupt ministers and bureaucrats to buy time from public exposure just before the elections. It is notable that the LDF has not strongly come out against the notification— they are also beneficiaries of the notification.

The Kerala State Information Commission has ordered Kerala Irrigation Department to release study reports and documents, submitted by it before the Supreme Court in the Mullaperiyar case filed by Tamil Nadu, under Right to Information Act. (See earlier post here)

The Department had refused to provide reports including the Dam Break Analysis on the ground that they were documents of “Strategic interests of the State” which were not required to be released under the RTI Act. The Commission did not uphold this contention and points raised by the Department in very detailed 70-page affidavit.

The complaint against the Department’s stand was made to the Commission as back as in March 2012. The hearing was taken up only by the middle of 2013 and was completed by September 2013. However, the Commission took nearly six months to issue the order.

Why did the empowered committee accept the studies done by Annamalai University in Tamil Nadu in preference to the finding of the professors of Indian Institute of Technology (Roorkee and Delhi)? Was it bias? Or did not it have something to do with the quality of the studies.

It is well known that some of the studies were done quickly, just months before they were to be presented before they were to be submitted to the court. The draft of the first part had come with several mistakes that officials of the Mullaperiyar Special Cell (Kerala) had to go to Delhi to get them corrected. The second part of the seismic stability studies could not even be completed and submitted to the Supreme Court in time.

Why did the reputed experts of IIT wanted the study to be restricted to official use only. Were they avoiding public scrutiny? If one looks at the executive summary, it has more background than findings. Though Water Resources Minister P. J. Joseph had told a press conference in reply to questions that the Irrigation Design and Research Board would publish the PMF and flood routing studies on Mullaperiyar Dam done by IIT, Delhi, and Seismic Stability of Mullaperiyar Composite Dam done by IIT, Roorkee, on its Web site; it is yet to do so. The Department is also refusing to release copies of these and other studies under the Right to Information Act.

It seems that the Inter-State Waters wing of the IDRB under the Irrigation Department has something to hide regarding the way it commissioned studies and presented facts before the Supreme Court.

In the case between Mullaperiyar Environmental Protection Forum v. Union of India and Others decided On: 27.02.2006, Kerala had failed to present its case properly and forcefully. This even resulted in the Mullaperiyar dam being recorded in the judgement as a masonry dam instead of as a composite dam. This weakened Kerala’s case because masonry dams, in general, have a longer life. Problems specific to Mullaperiyar, its structure, quality of the lime-surkhi mixture used and causes of weakness were never elucidated before the Court with supporting material. Kerala even failed to challenge Tamil Nadu’s contention that the waters from Mullaperiyar would be contained in Idukki reservoir in case of a failure of the former.

The judgement said: “Further, it is pertinent to note that the dam immediately in line afterMullaperiyar dam is Idukki dam. It is the case of State of Kerala that despite the ‘copiousrain’, the Idukki reservoir is not filled to its capacity, while the capacity of reservoir is70.500 TMC, it was filled only to the extent of 57.365 TMC. This also shows thatassuming the worst happens, more than 11 TMC water would be taken by Idukki dam.

It seems that nobody seemed to have cared to tell the Court that there are about 50000 people living between Mullaperiyar and Idukki who would be killed in case of breach of Mullaperiyar dam. (Analyses show that about 8800 houses would be submerged). Did the Court think that the area downstream of Mullaperiyar were all forests, given that the State’s arguments were all about disturbance to animals in the Periyar Tiger Reserve from raising of the water level? Why did Kerala make a case of Kerala that Idukki reservoir was filled only to the extent of 57.365 TMC, especially when the facts were to the contrary?

When it commissioned a study by IIT, Roorkee, on the threat posed to the dam from earthquakes, there was hardly time to complete in time. The first draft was full of factual mistakes and none from the IDRB was willing to quickly go to Roorkee and get the errors corrected. By the time the Department forced someone to go and the final version was readied, it was too late. The Court did not accept that as the time for producing evidence was over. A dam break analysis was not in sight even then.

The dam break analysis was quickly commissioned when the Empowered Committee of the Court was seized of the matter. Though Committee’s term is about to expire, only the first part of the study is over. The IDRB is refusing to divulge the full details of the study to the public. Tactics were raised to prevent furnishing of the documents relating to the analysis and material produced before Court. I reproduce below the details of the RTI request and response of the Department.

Copies of submissions, statements, argument notes and affidavits made by Kerala in the Mullaperiyar case filed by Tamil Nadu (challenging Kerala Irrigation and Water Conservation Amendment Act) before the Supreme Court and its Empowered Committee.

The request for copy of dam break analysis is rejected on the ground that the IIT Delhi had not conducted such as a study on Mullaperiyar dam. The reference to IIT Delhi was only an error in the request which was otherwise clear. Section 5(3) of the RTI Act specifies that the PIO should render reasonable assistance to persons seeking information. So, it is imperative that the PIO should have pointed out that the study was done by IIT Roorkee and proceeded to supply the information. The PIO has thus infringed the Act in letter and spirit. Hence, I request you to order immediate supply of copy of the analysis done by IIT Roorkee.

The Sections and subsection quoted by the PIO in rejecting my application for copies of submissions, statements, argument notes and affidavits made by Kerala in the Mullaperiyar case do not exist. However, I assume she is referring to sub clauses of Section 8 (1). Affidavits and other documents submitted to the court are public documents once it is filed before the court. Hence, there is no ground for rejecting my request under 8(1). Moreover, the strategic interest referred to in Section 8 Clause (1) Sub clause (a) of the Act refers to the sovereign State of India in relation to foreign States and not to states of India such as Kerala or Tamil Nadu. Section 8(1h) do not apply as no prosecution or apprehension of offenders is involved in the Mullaperiyar case.

In view of these above reasons, I request you to set aside the objections raised by the PIO and order release of the information without any further delay.

Trivandrum Yours truly

9-3-2012 Roy Mathew

The Appellate Authority did not respond directly to the points of appeal. Instead, it came up with a new argument that the dam break analysis has not been completed.